Native vs pastoral land rights

By Andrew Kacimaiwai

The ongoing land debate and racial reconciliation process in Australia took a new twist in late December when the Federal High Court ruled that native land status could coexist alongside existing pastoral leases.

The subsequent outcry from farmers, miners and politicians to protect leases has thrown the country’s touted reconcil iation process between Aborigines and White Australians into doubt.

The saga began when the Wik people of Cape York claimed native land status over 35,000 square kilometres in the far north of the Queensland peninsula, a claim rejected in late January 1996 by the federal court but appealed by the Wik people.

In late December, the Federal High Court partly upheld the appeal, ruling that native title could coexist with pastoral leases, but added that claims would have to be dealt with on their merits on a case by-case basis.

In the judgment, the court ruled that: • pastoral use would prevail in any conflict of claims; • the federal court would determine the application of the Wik people’s rights; • the Queensland government and two mining companies did not breach their duty to native landowners.

The previous ruling was that pastoral leases extinguished all native title land rights.

The judgment has overturned an almost 200-year-old system that pastoral leases had exclusive possession of graz ing land.

While Aboriginal groups applauded the court ruling, the powerful National Farmers Federation predicted an end to any chances of reconciliation between Black and White Australians.

Immediately after the ruling, the NFF called on the John Howard government to amend the Native Title Act, a move backed by state governments but opposed by the Aboriginal and Torres Strait Islander Commission (among others).

Since then, Howard has come under pressure from the states most affected by the ruling. West Australia and Queensland, to amend existing legislation to protect existing leases.

However, Prime Minister Howard has since been advised by the attorney-gener al that such amendments would breach their Racial Discrimination Act and has called for urgent talks on ways to amend the Discrimination Act.

State governments are already seeking ways to circumvent the ruling.

West Australia is seeding to resurrect a 1993 Labour plan to extinguish native title claims over leases by validating all leases since the implementation of the Racial Discrimination Act in 1975 and

January 1994.

They are pressuring the federal gov ernment to take action. Queensland’s government lately called for a stop to new lease applications in a move soundly con demned by both Aboriginal groups and the private sector.

Aboriginal community leaders have

been particularly upset by the scaremon gering tactics adopted by groups like the NFF, accusing them of deliberately dis torting the truth by saying that leases are now under threat.

The high court judges have also been quick to emphasise the limits to native land' claims, and the protection given to lease-holders by the priority given in their decision to farmers and miners.

The Wik ruling is also an extension of the terra nullis belief of colonial law that Australia was uninhabited before

Europeans arrived and fairly recently

rejected.

Meanwhile for the Wik people it has been time for celebration for a ruling that has revived their hopes and, more impor tantly, faith in the legal system.

According to Wik senior woman Gladys Tybingoompa, the decision means a positive step forward in the reconcilia tion process.

Unfortunately, that view is not shared by those on the other side of the racial reconciliation fence. ■